February 2012 Archives
Few ethical issues involving attorneys find their way into the case law more frequently that what you're supposed to do when your client wants to withdraw a plea, and you don't think he should. Interestingly, the courts don't find that a problem at all, as the 8th demonstrated last week in State v. Jones. But the decision may have pointed to a new line of attack for appeals on this issue.
Timing is everything, the comedians tell us, and William Newrones and Anthony Walker can vouch for that. Newrones finds out that he's too early, and Walker learns he's too late. Besides time-keeping, we learn a little bit about shoplifting and counterfeit money. Good week for us, bad week for defendants: even the City of Cleveland wins an affirmance, and I'd have to check, but I don't think that's happened since Monica Lewinsky got that dress cleaned.
Most of the talk about SCOTUS last week centered on the oral argument in United States v. Alvarez, involving Alvarez's prosecution under the Stolen Valor Act, a law Congress passed in 2005 making it a crime to falsely claim that you've received a military commendation. Alvarez, obviously subscribing to the theory, "go big or go home," told a meeting of his government agency in 2007 that he'd won the Congressional Medal of Honor, a neat trick considering he'd never served a day in the military. Alvarez is hanging is hat on the notion that even false speech falls within the protections of the First Amendment, something the Court is probably reluctant to hold, but then again, criminalizing speech without proof that it does any harm -- as opposed to the situation with, for example, fraud -- might be a bridge too far. The Court's been quite willing as of late to toss out laws that imposed any limits on speech; two years ago, they struck down a Federal law prohibiting animal cruelty videos, and last year California's law banning violent video games sales to minors got kicked to the curb. There are some cases that go very far in defining what we mean by freedom of religion or the right to bear arms, and it looks like Alvarez might do the same for freedom of speech.
Another case, Blueford v. Arkansas, concerned double jeopardy, but with a set of facts that make a broadly applicable decision unlikely. The foreman in Blueford's jury announced that the jury had acquitted Blueford of capital and first degree murder, but had deadlocked on the lesser charges. The partial verdict was never recorded, and the arguments revolved around the oddities of Arkansas procedure and whether the announcement was entitled to any double jeopardy significance. The only decision by the Court last week was Messerschmidt v. Millender, a §1983 suit involving the question police officers were entitled to qualified immunity on a search that went bad. Although back in 2004 in Groh v. Ramirez, the Court held that a warrant was so "obviously deficient" that it could not save the officers from civil liability, they came to the opposite result in Messerschmidt, and the opinion and lineup of justices on this issue -- the opinion was 6-3, and only two justices fully dissented -- suggests that any plaintiff seeking to hold the police liable for a seach where they obtained a warrant is going to have an exceedingly hard road.
Down in Columbus, bad news for Beastie Boys fans, both of them, comes in State v. Carrick. Carrick had a Halloween party in 2009, and, being the caring sort, decided to share by cranking up the bass so that it rattled the windows of his neighbors, a quarter mile away. When two visits by the police didn't provide sufficient dissuasion, a third resulted in Carrick's arrest for disorderly conduct. The court finds that the "making unreasonable noise" provision of the disorderly conduct statute is not void for vagueness, and upholds Carrick's conviction. The opinion tells us that the neighbors could distinctly hear the songs that were being played, but doesn't tell us what they are. Largely unnecessary; the likelihood that your neighbors will complain about your music geometrically increase if it's something by Megadeth or Twisted Sister, instead of "Layla" or "Stairway to Heaven." If that's the case, while I'm certainly no fan of vigilantism, it might have been appropriate here.
Williams v. Ormsby won't supply the plotline for the next rom-com. Williams and Ormsby have an off-again on-again relationship, the last episode of which features her moving back into his house with an agreement that she'd get half the house in the event of a split. No one saw that split coming, of course, but when it did, the inevitable lawsuit wound up in the Supreme Court, which decided that the agreement was invalid because love and affection alone are insufficient consideration for a contract. Good thing the court waited until the week after Valentine's Day to issue that opinion.
On to the courts of appeals...
Catch-22 is one of the most famous books of the last century. It used World War II as a backdrop for a satire on the inanity of how governments and bureaucracies operate, and the reasoning, or lack of it, which goes into that. Everybody remembers the Catch-22 that is the focal point of the book -- the rule that anyone seeking a psych evaluation to determine that he's not sane enough to fly combat missions is trying to escape danger, and thereby demonstrates he's sane -- but there are others. In fact, the main character comes to realize that Catch-22 doesn't actually exist, but because it doesn't, it can't be repealed, either.
I think Paul Palmer would really appreciate the book.
I sometimes do work with an attorney who has one of the most unusual ways of practicing criminal law. Most of us take a reactive posture: we respond to what the State does. We look at their case and figure out the weaknesses, and how we can attack it. As I've said before, defense lawyers rarely win cases by putting evidence in; we win cases by trashing the State's evidence, or by keeping evidence out.
My friend doesn't believe that. He approaches a criminal case like a plaintiff's lawyer in civil case: he figures out what he wants to prove, and then assembles the evidence to prove it. He'll file motions with forty or fifty pages of supporting documents. One time, he felt he needed to prove that his client had been living at a particular address for a number of years, so he got copies of the last nine White Pages and had them carted up to the judge's chambers. His approach is to beat the prosecutor into submission, and it works much more often than not. He's gotten some really good results for his clients.
And the client pays for that. Boy, does the client pay. You want a Cadillac defense, you're going to pay for a Cadillac defense.
But here's the question: are you still entitled to a Cadillac defense if you only pay for a Corolla?
The right to counsel is probably the cornerstone of our concept of due process. The government won't buy you a car, but if you get in trouble, it'll pay for an attorney -- not much, mind you -- to make sure you have one. If a judge screws up your confrontation rights, or just about any other one, the court will consider whether it affected the trial. If you don't have a lawyer when you should, though, that comes back automatically; it's structural error.
That's a recognition of the importance that a lawyer plays in a criminal case. That's not just a factor of money, although anyone familiar with the American justice system would readily agree that the man who said money can't buy happiness never sat in a courtroom. There's a wide variety of skills among lawyers at all levels: appointed or retained, young or old, male or female, black or white, defense lawyer or prosecutor. And the difference in those skills sometimes means the difference between victory and defeat. Not always; facts are facts and laws are laws, and if both weigh predominantly in favor of one side, there's not much anybody can do about it. But at the margins, yes, it makes a big difference.
Last week I might have taken an unfair shot at a lawyer, and a couple of weeks ago I missed an opportunity to congratulate a lawyer for a job well done, so today I'm going to make amends.
SCOTUS resumes oral arguments this week, but the big news on the Federal court front, at least here, was a district court judge's grant of a new trial motion in the case of Antun Lewis, who'd been convicted last year of the arson death of nine people, eight of them children, in a 2005 fire on Cleveland's east side. The 95-page opinion, which you can read here, savages the prosecution's case, which was based almost entirely on the testimony of jailhouse snitches who claimed that Lewis had confessed to them. Under Ohio law, a jury is advised to treat an accomplice's testimony with "grave suspicion." Given that snitches are the leading cause of wrongful convictions in U.S. capital cases, according to a study done by Northwestern University, it is well past time to extend that same jury advisement to them. One more thing about the case: for those of you concerned about the "Federalization" of criminal law and wondering how this wound up in Federal, rather than state, court -- as a death penalty prosecution, no less (the judge had earlier determined that Lewis wasn't eligible for execution because he was mentally retarded) -- the government acquired jurisdiction over it because the person renting the house that was set on fire received a Section 8 subsidy, and prosecutors claimed this involved the house in interstate commerce. Maybe we ought to pass a law about that sort of nonsense, too.
A couple of decisions from the Ohio Supreme Court this past week, on civil cases. Sampson v. CMHA involved an intentional tort action by Sampson, an employee of CMHA who sued the agency for malicious prosecution. The lower courts had rejected CMHA's claim of sovereign immunity, based on the provision of RC 2944.09(B) which allows suits by employees against a political subdivision if the suit arises out of the employment relationship. CMHA made a clever argument: in its earliest cases creating a right of an employee to sue an employer for intentional tort, the Supreme Court had held that such torts did not arise from the employment relationship. The reason for that was clear: if it did arise from the employment relationship, suit would be barred by the workers' compensation law. Clever, but not clever enough; the court refuses to import the law from the intentional-tort cases into the law on sovereign immunity. The only remaining question is whether the tort did indeed arise out of the employment relationship, and the court holds it did.
Tort reform has been an ongoing battle in Ohio for the past twenty years. The first two efforts by the legislature in the 90's were rejected by the Supreme Court, but that was then and this is now. The latest effort, in 2005, has been affirmed in its various particulars -- caps on damages, modifications to joint liability, major limitations on employer intentional torts -- by previous decisions. (Arbino v. Johnson, the main one upholding the law, discussed here; Kaminski v. Wire Products, upholding restrictions on employer intentional torts, discussed here.)
The latest, Havel v. Villa St. Joseph, makes the victory of the tort reform proponents, mainly businesses and insurance companies, complete. Part of the 2005 tort reform act required bifurcation of any claim for punitive damages. For obvious reasons, plaintiffs liked the law and defendants did not: a jury might be more generous with compensatory damages, and more likely to find against the defendant in the first place, if it heard evidence of the egregiousness of defendant's conduct. With bifurcation, evidence of that conduct will be reserved for a second trial, if there is one. The 8th District had held this was impermissible because it conflicted with CivR 42(B), which gives a trial court discretion on bifurcating damage claims; under Ohio law, if a statute conflicts with a rule, the rule governs. But not if the statute creates a "substantive" right, and the Supreme Court holds that it did so here, looking to the uncodified language of the statute -- the sections that the legislature tacks on to the end of an act, declaring its intent. The bottom line is that when a statute and a rule conflict, "the statute will prevail in matters of substantive law and the rule will prevail in matters of procedural law."
In the courts of appeals...
The 8th District usually hands down anywhere from six to twelve criminal decisions a week. Sometimes, one or more have a significant impact. Sometimes not. This week not. Still, there are some things we learn.
Like maybe drug dealing isn't as remunerative as it's cracked up to be.
I hate it when my client, a 19-year-old kid who dropped out of high school in the 10th grade, is the smartest guy in the room.
So here's the situation with Deron. One night back in July of 2010, some guy we'll call Jack was standing on his treelawn talking to a couple of buddies, when, he claims, Deron rode up on a bike, said to Jack, "Do we have a problem?" and promptly pulled out a gun. Jack had his own, it turns out, and was quicker on the draw, getting off five shots. Deron took off running, then, again according to Jack, turned and got off a couple of shots of his own.
So much for the notion that a well-armed society is a polite society, I suppose... Deron got picked up a while later, and, since he was 17 at the time, wound up in juvenile court. He was subject to a bindover, but the prosecution was willing to make him a deal: two years in a youth camp. He turned it down.
That's going to become a theme here.
I don't care who it is, there's never been a trial lawyer who's lost a case and didn't think, "What if I'd done this instead? What if I'd asked this question, or not asked this one? What if I'd made this argument?" Any contest invites second-guessing by the loser.
For the most part, the questions are unanswerable. It's not like there's another trial taking place simultaneously, where the other lawyer is doing the things that you don't, and not doing the things that you do, and you can compare the outcomes and see how they were affected by the lawyers' tactical and strategic decisions.
But what if there were? That's what happened in a couple of cases out of the 11th District on Monday, and the outcomes couldn't have been more different, and couldn't have been more dependent on the lawyers' decisions.
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